Treatment shock

Date: 14 September 2007
Authors: David Hewitt
Issue: Vol 157, Issue 7288
Categories: Features, Mental health

Rumours of the death of the “treatability test” have been greatly exaggerated, says David Hewitt

Thanks to a last-minute amendment, the Mental Health Act 2007 (MeHA 2007) will be less radical than many people had feared—at least in the way it deals with medical treatment.

In July 2007, MeHA 2007 received Royal Assent. It will amend the Mental Health Act 1983 (MeHA 1983), probably with effect from late 2008. As expected, it removes the previous “treatability test”, but, perhaps surprisingly, it does not do so entirely.

THE TREATABILITY TEST

At the moment, MeHA 1983 may be used to detain and give compulsory medical treatment to someone suffering from “mental disorder”. MeHA 1983 recognises four categories of mental disorder: mental illness, mental impairment, severe mental impairment and psychopathic disorder (ss 1 and 3); and its definition of “medical treatment” includes “nursing…care, habilitation and rehabilitation under medical supervision” (s 145(1)).
If someone is to be detained for anything other than the short-term, the medical treatment he is to receive in hospital must be “likely to alleviate or prevent a deterioration of his condition” (s 3(2)(b)). This requirement is known as the treatability test.

Where a patient is suffering from mental illness or severe mental impairment, the treatability test will apply only when detention is being renewed, so that at first, the patient will be detainable even if the test is not fulfilled (ss 3(2) and 20(4)(b)). However, no patient with mental impairment or psychopathic disorder may be detained unless he is “treatable” from the outset (s 3(2)(b)). MeHA 2007 changes this position.

APPROPRIATE TREATMENT TEST

Once MeHA 1983 is amended, medical treatment will include “nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care” (MeHA 2007, s 7(1) and (2)). It seems that this definition is intended to make it plain that medical treatment includes “psychological intervention”, and that MeHA 2007 may be used to treat—and therefore to detain—patients suffering from psychopathic disorder. The government has long felt that this possibility is too little understood by clinicians (see 156 NLJ 7230, pp 1008–09). In addition, MeHA 2007 replaces the treatability test with an “appropriate treatment” test.
MeHA 2007 contains a much broader definition of mental disorder; one that dispenses with the four old categories and encompasses “any disorder or disability of the mind”. This test will apply to any patient suffering from mental disorder, and it will require only that “appropriate medical treatment is available for him” (s 4(2) and (4)). “Appropriate” treatment will be “medical treatment which is appropriate in [the patient’s] case, taking into account the nature and degree of the mental disorder and all other circumstances of his case” (s 4(3)).

The feeling—indeed, the fear—of many was that if the treatability test were replaced by the appropriate treatment test, it would be easier for some patients to be brought within MeHA 1983. That might be so, but it isn’t the whole story.

The precise meaning and significance of the words “appropriate” and “available” will be debated at length. It seems that under the new test, a patient might be denied MeHA 1983 treatment, not because practitioners consider him untreatable, but because they think the requisite treatment is not actually available to him. If that were to happen, the doctors and social workers concerned might argue that they had discharged their clinical duties in full, and that any failings were on the part of those responsible for providing the services the patient required but could not be given.

THE RETURN OF TREATABILITY?

The appropriate treatment test might be thought to have finished off the treatability test. That, however, is not so. Opponents of the former fought hard to save the latter; and there were many of them. When the then Mental Health Bill returned to the House of Commons, an amendment put forward by Chris Bryant MP was carried.

The amendment was something of a compromise. It makes a further change to the definition of medical treatment, which MeHA 2007 now says, “shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (s 7(3)). This means that although the treatability test has been removed from the criteria for detention, something like it has been inserted into the definition of medical treatment. As a patient can only be made subject to MeHA 1983 if he is to receive medical treatment for his mental disorder, little has changed.

Thanks to MeHA 2007, the amended MeHA 1983 resembles the unamended version in requiring that if a patient is to be susceptible to detention, medical treatment must bring about an alleviation of his mental disorder. The only difference is that MeHA 1983 said detention (or renewal) would only be possible if treatment was likely to have the effect, whereas the 2007 version requires only that such be its purpose.

If this represents a weakening of the old treatability test, it is not as great as it seemed likely to be. The precise distinction between the two versions of the test, and the implications of that distinction for doctors and patients, will probably keep the lawyers, if not their clients, happy for many years to come.

David Hewitt is a partner at Hempsons. E-mail: dwh@hempsons.co.uk

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